Bullying – The Commission, the cases
and the considerations Chris Turner
Director – Adecco:OHRGM – Industrial and Gov’t Relations
Objectives – Bullying within the workplace
Policy and procedures
Maximising protection Maximising reliability
Handling a bullying matter Internal vs external Cost of inaction
Key CasesWhat is considered ‘at work’? Other recent cases
The role of the FWCJurisdiction ‘Stop bullying’ orders
Essential common understanding
The risk to health and safety is real‘Bullying’ is different for everyoneAnyone can be bullied
Where can a bullied employee seek remedy?
Claims can be
concurrent
FWC
HREOC
WH&S
Criminal/Civil
Reputational risk of allowing a bullying culture• Cases are increasingly being picked up by
social media and typically then the wider media
• Damages being sought are increasing significantly -$100,000’s is now common
• Courts and Tribunals are analysing the steps taken to eradicate bullying prior to issuing orders or making decisions
• FWC has ordered a bullying report be handed over for consideration
• Personal liability for decision makers increasing
• Café Vamp – significant penalties and changes to Crimes Act outlawing serious bullying• Australian Defence Force –
Defence Abuse Response Taskforce• St John Ambulance – Number of
suicides linked to organisation• Royal Australasian College of
Surgeons – Independent review found almost half of workers felt they’d experienced bullying, discrimination and/or sexual harassment
Some statistics from the FWC
Only 1 of the 60 decisions finalised resulted in an order being issued
More statistics from the FWC 2014/5
150,000 unique
website hits for bullying
6300 telephone enquiries
694 applications processed –
72% increase
800+ conferences
and hearings
46% resolved at
FWC conferences
What must an applicant establish for a FWC claim?• Evidence causal link between alleged
bullying and a risk to health and safety
• That the bullying occurred ‘at work’
• And there is a likelihood of the bullying continuing
• 48,242 eligibility quizzes were taken 2014/5
Common outcomes from the FWC conferences
• Undertakings about future behaviour• Clarification of roles, responsibilities
and reporting relationships• Employer to establish or review anti-
bullying policies• Provision of information, additional
support and training to workers• Worker to return to work on agreed
conditions • Agreed relocation of individual
named and/or the applicant worker
Reduced management
discretion
Positive obligation to
act
Must reasonably
accommodate
What will a ‘stop bullying order’ likely contain?
Significant case – DP World Goes outside the physical workplace
Does not have to occur during
work hours
Can include meal breaks
The Full Bench noted:
• ‘It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).’
• This matter also included allegations of bullying conduct in relation to posts on social media.
• The Full Bench rejected the MUA’s argument that workers would have to be ‘at work’ when offending social media posts were made for the conduct to fall within the bullying regime as the behaviour continued for as long as the comment remained online.
• The Full Bench also noted that alleged bullies need not be ‘at work’ at the time of their conduct.
Bowker et. al v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227 – Full Bench – 22 December 2014
More recent casesHarpreet Singh
[2015] FWC 5850 (28 August 2015)
Did not meet bullying
requirements
FWC advised to seek other remedies
McInnes [2014] FWCFB 1440 (6 March 2014)
Bullying prior to 1 Jan 2014 can be
considered
Laws operate prospectively – based on past
events
Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC
64
Failure to act on concerns, failure to
apply policy
Almost $240,000 in damages awarded to
Applicant
Managing a bullying complaintIs it possible to keep
employees safe?
Can the matter be investigated without
perceived bias?
Does the Company have a prescribed
bullying investigation process/framework?
• Priority must be on employee safety and how this can be achieved – this is stop light decision to be made prior to any next steps• How will confidentiality be
managed if requested?• Are reasonable accommodations
required immediately/short term?• Is there an anti-bullying policy that
a complaint triggers positive obligations or prescribed actions to commence?
Considerations for running an investigation
Identify key people –
parties involved,
witnesses, stakeholders
Identify risks to all parties –
safety, reputation, response
action
Design investigation –
questions, format,
timeframe, correspondenc
e
Cover confidentiality
including recording of
meetings, record keeping
Design decision making matrix – outcomes,
required changes,
implementation
Each case will be factually unique. Care must be taken to ensure appropriate level of experience, resources and probity is applied.
Internal versus external investigation
Independence
Nature of claims
Time and resources
Likelihood of litigation
• External assistance can help where there may be questions over impartiality or bias
• Where the severity or nature of the allegation warrants investigative subject matter expertise and/or a formal record with findings is required
• Where an organisation does not have the capacity or capability to run an investigation
Pro-active approach to anti-bullying
Early resolution
Provide anti-bullying training
for staff and managers
Establish workplace
behaviours and standards
Develop policies for anti-
bullying and reporting processes
Provide and encourage use of EAP services
Awareness & understanding
Reliability
Defend-ability
Values driven
Cost of inaction
Cultural Cost
• Higher turnover• Low satisfaction
levels• Lower
productivity• High
Absenteeism
Financial Cost
• Investigation • Worker’s
compensation• Litigation• Damages and
decisions• Recruitment
Lack of decision making Cost
• Orders requiring specific actions
• Inability to direct staff to work together
• Reduced discretion of directing duties
Anti-bullying Policy considerations
Workplace Safety
Formal Process
Informal Process
Compliance and
enforceability
Escalation and
intervention
Adherence and
application
Worth considering interaction with contracts, EBA’s, other policies (including ‘whistleblower’ policies and social media)
Final considerations
Keep up to date with decisions – it is still early in
the life of this legislation
Focus on consistency of decision making,
accountability and processes
Try to balance best practice, business practice, and value building policies
Ensure employees have access to support, training, and feedback mechanisms
Educate staff on Anti-bullying